Do schools that permit the distribution of student religious literature give up all control over how it is done?

Tuesday, January 4, 2005

No. Just because schools may not prohibit the distribution of all student
materials does not mean that schools have no control over what may be
distributed on school premises. On the contrary, courts have repeatedly held
that schools may place reasonable “time, place and manner” restrictions on all
student materials distributed on campus. Thus, schools may specify when the
distribution can occur (e.g., lunch hour or before or after classes begin),
where it can occur (e.g., outside the school office) and how it can occur (e.g.,
from fixed locations as opposed to roving distribution). One recent decision
upheld a policy confining the distribution of student literature to a table
placed in a location designated by the principal and to the sidewalks adjacent
to school property. Of course, any such restriction must be reasonable.

It is also likely that schools may insist on screening all student materials
prior to distribution to ensure their appropriateness for a public school. Any
such screening policy should provide for a speedy decision, a statement of
reasons for rejecting the literature and a prompt appeals process. Because the
speech rights of students are not coextensive with those of adults, schools may
prohibit the distribution of some types of student literature altogether.
Included in this category would be:

  • Materials that would be likely to cause substantial disruption of the
    operation of the school. Literature that uses fighting words or other
    inflammatory language about students or groups of students would be an example
    of this type of material. Student speech may not be prohibited simply because it
    is considered offensive by some (see Saxe v. State College Area School Dist., 3rd Cir. 2001).
  • Material that violates the rights of others. Included in this category would
    be literature that is libelous, invades the privacy of others or infringes on a
  • Materials that are obscene, lewd or sexually explicit.
  • Commercial materials that advertise products unsuitable for minors.
  • Materials that students would reasonably believe to be sponsored or endorsed
    by the school. One recent example of this category of speech was a religious
    newspaper that was formatted to look like the school newspaper.

Though schools have considerable latitude in prohibiting the distribution of
materials that conflict with their educational mission, schools generally may
not ban materials solely on the basis of content. Similarly, schools should not
allow a heckler’s veto by prohibiting the distribution of only those materials
that are unpopular or controversial. If Christian students are allowed to
distribute their newsletters, then Buddhists, Muslims and even Wiccans must be
given the same privilege.